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German v. Corporation.

decided: August 13, 1948.


Author: Kalodner

Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

Plaintiff, a seaman, brought action below on the law side to recover cure and maintenance, and damages by reason of unseaworthiness of the vessel, under the admiralty and maritime laws; also damages under the Jones Act, 46 U.S.C.A. ยง 688, by reason of negligence. The three-pronged action was tried before a jury which rendered a verdict in German's favor in the amount of $4,011. Defendant's alternative motions for a new trial or for judgment in its favor notwithstanding the verdict, were denied by the trial court.

The defendant urges here, as it did in the court below, that the trial judge should have given binding instructions in its favor in view of the fact that the plaintiff had executed a release in consideration of the receipt of a payment of $2,500. The defendant also contends that at the trial it sustained the burden, imposed upon it by law, of establishing that the release was valid.

Before discussing the question of law essential to the determination of the issue here involved it is desirable to make the following summary statement of the evidence adduced at the trial:

Plaintiff is a riverman of about 40 years' experience. He was first employed by the defendant in 1922, then "on and off." Beginning in 1937, he worked continuously for the defendant for some seven years as deckhand and fireman. In January, 1944, he was assigned to duty as a striker-engineer. His principal duty was to oil and grease the engines. To do so he was required to move on and along a foot box or foot board placed in front of the engines. On or about April 15, 1944, he slipped and fell from the foot box to the deck, suffering the injuries later described. The plaintiff attributed the occurrence to the negligence of a fellow-seaman in dropping oil and grease on the foot box and in failing to remove it. He asserted, too, that the failure of the defendant to provide a grab bar or guard rail for safety while moving along the foot box, which was frequently oily and greasy, constituted unseaworthiness of the vessel.

According to the plaintiff, he suffered at the time head and other body injuries as the result of his fall. Nevertheless, he continued to work until May 5th when he went on a five-day shore leave in the course of his regular routine.*fn1

On May 8th, while walking on the street in Pittsburgh, Pennsylvania, the plaintiff was stricken unconscious. He was taken to the Allegheny General Hospital, Pittsburgh, where he remained until May 12th. He was then taken to the United States Marine Hospital near Pittsburgh, where he remained until June 29th. He was an outpatient of that hospital from the latter date until August 28th.

During the latter period, in mid-August, plaintiff returned to work for the defendant for about a week. However, he was compelled to leave because of his physical condition and was thereafter unable to do any kind of work. On September 20th, he entered the United States Veterans' Hospital at Aspinwall, near Pittsburgh, where he remained until October 19th. The record does not disclose any further hospitalization or out-patient treatment.

The medical testimony on both sides was to the effect that plaintiff, who was 55 years old at the time, had suffered a cerebral thrombosis on May 8th, with an attending paralysis which eventuated in the loss of use of his left arm and the left side of his body. There was no question but that the plaintiff was thereafter totally and permanently disabled. But there was sharp disagreement as to whether the accident on April 15th was the cause of the cerebral thrombosis. Plaintiff's medical testimony said it was. Defendant's medical testimony was to the contrary, attributing the thrombosis to a pre-existing arteriosclerosis and myocarditis. In connection with the latter, a Dr. Bloom of the United States Marine Hospital staff testified that the plaintiff had been hospitalized during December, 1943, for a coronary attack and that the basis of the diagnosis was "arteriosclerosis". The hospital record disclosed that on December 28, 1943, the plaintiff had been given a certificate stating that he would be "fit for duty" about January 1, 1944. It was at the later time that plaintiff returned to work for the defendant as striker-engineer aboard the "Perry," which plied the Ohio, Monongahela and Allegheny Rivers.

There was also testimony of a Dr. Huber, a neuropsychiatrist of the Veterans' Hospital, relating to the plaintiff's condition during his hospitalization in September and October, 1944. In attributing the plaintiff's condition to the April 15th accident, Dr. Huber said he had suffered "damage to his brain" and that "he has now evidence of mental deterioration to the degree that he is not as alert as one should be for his age." (N.T. pages 225, 226).

As to the release in question:

Prior to the institution of the action now under review, the plaintiff had filed four other suits based on the April 15, 1944, accident.

The first action was brought in the Court of Common Pleas of Allegheny County, Pennsylvania, under the Jones Act. After introducing evidence as to liability, the plaintiff suffered a voluntary non-suit. He subsequently filed Civil Action No. 3937 in the District Court for the Western District of Pennsylvania, under the Jones Act, for damages and for maintenance and cure. Later he filed Civil Action No. 4827 in the same Court charging negligence under the Jones Act and unseaworthiness under general maritime principles. The latter case came to trial and there was a verdict for the defendant. We reversed and remanded for a new trial, 156 F.2d 977, on the ground that the trial court had erred in requiring the plaintiff, in the ...

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